Swimming Pool Fencing

Who Should Be Required to Fence Their Swimming Pools: Is it ‘Criminal’ to NOT do so?

With the summer months here again water safety should always be a priority consideration to ensure that we all keep our families and communities safe.

A child’s death by drowning in a swimming pool is an extremely sensitive subject and certainly all parents’ worst nightmare. The topic of swimming pool safety should never be taken lightly, but the issue of children’s safety in NZ is an intriguing legal question. One for the lawyers, as there appears to be conflicting legal requirements between pool fencing provisions and wider child safety supervision.

SWIMMING POOL SAFETY

S162C of the Building Act 04 (BA04) Residential pools must have means of restricted access –

In lay persons terms this means that NZ Building Law requires all building owners with a pool to maintain a means of restricting children’s access for safety reasons.

BA04- S162C (1) Every residential pool that is filled or partly filled with water must have physical barriers that restrict access to the pool by unsupervised children under 5 years of age.

CHILD SUPERVISION

Section 10B of the Summary Offences Act 1981 states that; a person is liable to a fine if they leave a child under the age of 14, without making reasonable provision for the supervision and care of that child. There is no clear definition of the period of time and circumstances, only that they must not be unreasonable. Notwithstanding clear definition this would indicate that adults need to make sure children are looked after properly, and this care should match what is going on around them and how long they are alone.

However, Section 162C BA04, is clear in its intent in being applicable only to unsupervised children under the age of 5 years old. So, it would appear that additionally leaving a child under the age of 14 unsupervised does have further legal responsibilities?

SWIMMING POOL SAFETY REQUIREMENTS

Despite the legal contradictions, the risk posed to young children by unfenced swimming pools is very real and thankfully the NZ Building Law and supporting guidance is clear.

We recommend that if you own a pool as the building owner you must take responsibility for the necessary practical steps required to ensure child safety.

If you are buying a new pool, make sure the manufacturers or retailers can give you definitive guidance on how the pool/system will comply specific to your property.

The relevant NZ building code clause for pool barriers is F9.

It is important to focus on protection of the immediate pool area.  The immediate pool area is the land in or on which the pool is situated and so much of the surrounding area as is used for activities carried out in relation to or involving the pool.  To keep it simple to comply consider making the immediate pool area as small as practical and minimise access.  Using a new or existing building as part of the pool barrier also has it’s pitfalls with specific controls on doors and other openings and should be avoided if possible.

Each NZ Local Authority will have knowledgeable trained staff who can assist you in this important requirement.

Stay safe NZ!

Disclaimer: This publication is general in nature and should not be used as a substitute for legal or other professional advice.  Please seek specific professional advice before acting in relation to any statement contained in this publication.